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Judgment
S. Sardar Zackria Hussain, J.—The revision petitioners are the landlords, who lost the case before the learned Rent Controller and also the
learned Rent Control Appellate Authority in securing eviction of the respondents/tenants from the petition non-residential premises on the ground of
demolition and reconstruction.
The landlords have filed the Rent Control Original Petition u/s 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960
(hereinafter referred to as ""the Act"") stating that the properties described in schedules ''A'' and ''B'' to the petition are situated in No.2 Road,
Mayiladuthurai Town. The immovable property in ''A'' schedule is a theatre and its adjuncts and so is a non-residential premises. The movables in
''B'' schedule are the furniture, fans, electric lights and fittings etc., which form part of the fixtures in ''A'' schedule theatre. The revision petitioners 2
and 3 are the sons of the first revision petitioner and the revision petitioners 4 to 7 are the sons of the elder brother of the first revision petitioner.
The second respondent is the daughter of the first respondent, who is the wife of the deceased K.C.Sundaram and who died on 21.7.1990 and he
was the lessee of the ''A'' and ''B'' schedule properties for the past several years as per the rental arrangement. The respondents, who are the sole
legal heirs of the deceased K.C.Sundaram, are in possession of the lease-hold properties. Lastly, the rental agreement was entered into between
the deceased K.C.Sundaram and the revision petitioners/petitioners 2 to 7 on 1.10.1987 for a period of three years on a monthly rent of
Rs.4,500/- in respect of the ''A'' schedule property and a sum of Rs.1,500/- per month for ''B'' schedule property. As such, the deceased K.C.
Sundaram was tenant in respect of the ''A'' and ''B'' schedule properties on a monthly rent of Rs.6,000/-. The buildings in the ''A'' schedule
property are more than 60 years old. The main auditorium is a brick built zinc roofed building and is not in a sound condition. The site of the ''A''
schedule property and its adjuncts have an area of 38,000 square feet and the same is situate in the heart of the commercial locality where there is
demand for commercial accommodation with very handsome returns. Therefore, the revision petitioners intend to pull down and demolish the
entire existing building and to put up a new building thereon. They want to put up a shopping complex over the site for the purpose of augmenting
their income and make the site of the ''A'' schedule property with the construction of the proposed commercial complex more remunerative and
productive. The revision petitioners have sufficient funds to put up shopping complex and they have made arrangement for designing the complex
and for drawing plans for the said purpose. The revision petitioners undertake to demolish the material portion of the building by not later than one
month and would complete before the expiry of three months from the date of recovery of possession of the entire building or before the expiry of
further period that will be extended. To the lawyer notice dated 31.10.1990, the respondents caused reply notice dated 3.11.1990.
The petition was opposed in the counter, in which it is stated that the furniture mentioned in the petition do not form part of the subject matter of
the lease. The furniture had become unusable and the same can be handed over. The entire furniture available in the property have been put up and
arranged only by the tenants and they are the owners of 28 fans installed in the theatre. The building is not in dilapidated condition and it is a brick
built zinc roofed building but in a sound condition. It is admitted that the area is an important area, but it has not developed commercially. The
requirement for demolition and reconstruction is mala fide and the Rent Control Original Petition is filed only for the purpose of evicting the tenant.
The revision petitioners do not have sufficient funds for the proposed shopping complex. As per the demand made by the revision petitioners and
as agreed in the presence of common relation of both and the son-in-law of the first respondent and in the presence of the 4th revision petitioner
that the rent is to be paid at Rs.7,500/- per month and accordingly a cheque was also sent for Rs.7,500/-, but the cheque was not presented for
encashment. Even in the notice, it is mentioned that the property will fetch Rs.15,000/- per month thereby indicating that the intention of the
revision petitioners is only to get enhanced rent.
Before the Rent Controller Exs.P-1 to P-34 have been marked on the side of the landlords and Exs.R-1 to R-23 have been marked on the side
of the tenants. Considering such documentary evidence and Exs.C-1 to C-3 report of the advocate-commissioner and the report and the plan of
the Engineer and also the evidence of the 6th petitioner as P.W.1 and the Engineer P.W.2 and that of the evidence of R.W.1, the husband of the
second respondent, Engineer R.W.2 and R.W.3, though the learned Rent Controller recorded finding that the age of the petition building is 60
years and in stating the evidence of the Engineer P.W.2 examined on the side of the landlords, he found that the condition of the petition building is
sound and further, pointing out Exs.R-5 to R-9 certificates issued by the Registered Engineers with regard to the soundness of the petition building,
the learned Rent Controller also found that the petition building is in good condition. The learned Rent Controller also holding that the landlords
have no sufficient funds, in that the income earned by them, viz., Rs.6,00,000/- every year is only sufficient for their family expenses, that the
landlords have not let in evidence with regard to the estimate for the construction of the shopping complex and that they have also not taken steps
to evict three tenants, who are in occupation of the 3 shops on the western side, without which the proposed shopping complex cannot be put up
and also stating that the landlords have let out property of about 10,000 square feet to a workshop in No.2 Road, S.S.T.P. Service,
Mayiladuthurai nearer to the petition properties and the landlords have also not obtained sanctioned plan from the municipality and as such, the
requirement as sought is without bona fide and so, dismissed the Rent Control Original Petition. Such order was challenged in the appeal and the
learned Rent Control Appellate Authority, in concurring with the findings of the learned Rent Controller, also dismissed the appeal. The landlords
have preferred this revision against the dismissal of the Rent Control Appeal.
During the pendency of this Civil Revision Petition, the first revision petitioner Ramu died and the revision petitioners 2 and 3 are recorded as
legal representatives of the deceased first revision petitioner Ramu.
Heard the learned Senior Counsel Mr.S. Chandramouli appearing for the revision petitioners/landlords and the learned Senior Counsel Mr.M.
Venkatachalapathy, appearing for the respondents/tenants.
The learned Senior Counsel appearing for the revision petitioners/landlords argued that the findings recorded by the learned Rent Controller and
the learned Rent Control Appellate Authority with regard to the condition of the petition building as found is improper. In view of the fact that the
petition building, in which a cinema theatre is run and is situated in a commercial locality, the requirement of the petition ''A'' schedule premises is
bona fide, for the purpose of augmenting the income to the revision petitioners. As regards the sufficient funds, according to the learned Senior
Counsel appearing for the landlords, the landlords have enough funds as can be seen from the Income Tax returns under Exs.P-27 to P-34 relating
to the revision petitioners/landlords. As regards the approved plan, it is submitted by the learned Senior Counsel appearing for the revision
petitioners that after the eviction is ordered such plan can be obtained and since the sanctioned plans have to be renewed periodically, it was not
obtained and filed along with the Rent Control Original Petition or after filing of the Rent Control Original Petition. The learned Senior Counsel also
pointed out that necessary undertaking as contemplated under the Act has been furnished in the Rent Control Original Petition as well in the
evidence of P.W.1. The learned Senior Counsel also placed the following decisions in support of such contentions:-
(1) S.P. Sabura Begum Vs. M.K. Thangavelu, , in which this Court has held:-
Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Tamil Nadu Act 23 of 1973), Sections 14(1)(b) and 14(2)(b) - ""For immediate
demolition and reconstruction"" - Meaning of - Landlord seeking eviction of tenant on ground to demolish and reconstruct building. Condition of
building need not be dilapidated or dangerous for granting permission for demolition and reconstruction u/s 14(1)(b). Intention of landlord should
be genuine and no spurious or suspicious. Age and dilapidated condition of building is not sine qua non for ordering eviction. Landlord''s
requirement for demolition and erection of building should be bona fide and finding on this aspect has to be rendered by taking into account age
and condition of building, financial position of landlord to demolish and erect new building and bona fide intention far from sole object only to get
rid of tenant.
(2) Vadamaduraipandian Vs. N. Susila Ammal,
(3) P. Ganesan - vs. - Subbiah Dharmanidhi Tuticorin, through its Managing Trustee, D. Ganesan and other reported in 2003(2) C.T.C. 4
(4) R.V.E. Venkatachala Gounder - vs. - Venkatesha Gupta & others reported in 2002 (4) LW 427, in which the Apex Court in paragraph 11
has ruled:-
The landlord proposes to construct a new and modern building in busy commercial locality of a rising city. The landlord requires a part of the
newly constructed building for his own personal use and such part of the newly constructed building as would be in excess of his own requirement
he is willing to let out at current rate of rent to his tenants which would obviously augment his earnings. The newly constructed double storeyed
building, would certainly provide much more total accommodation than what is available.
(5) Harrington House School - vs. - S.M. Ispahani & another reported in 2002 (4) LW 639, in which the Apex Court in paragraph 8 has ruled:-
Substantial amount is charged by the local authority by way of fee for sanctioning the plans for reconstruction and if the reconstruction is not
carried out within a limited time the sanction has to be kept renewed periodically for which the local authority again charges a substantial amount by
way of renewal fee. The phenomenal delay in disposal of litigation entails heavy financial burden on the landlord and that is why they have not
submitted the plans for approval though ready. There appears to be some substance in the plea inasmuch as we find that this litigation itself has
taken about 14 years by this time in achieving finality. ........... ............................... sanctioned or approved plans shall be produced before the
Executing Court whereupon the Executing Court shall allow a reasonable time to the tenant for vacating the property and delivering possession to
the landlords/decree-holders ............... Along with the plans the landlords shall also file an undertaking before the Executing Court as required by
clause(b) of sub-section(2) of Section 14 of the Act.
The learned Senior Counsel appearing for the respondents/tenants contended that the lease being a composite lease, the Rent Control Original
Petition as filed is not maintainable as per Section 30(iii) of the Tamil Nadir Buildings (Lease and Rent Control) Act. The learned Senior Counsel
further contended that though such plea was not taken in the counter filed by the tenants before the learned Rent Controller and also before the
learned Rent Control Appellate Authority, such plea can be taken in this revision. As regards the bona fide requirement, the learned Senior
Counsel vehemently contended that though the building is aged 60 years, it is in good condition and not required for immediate demolition and
reconstruction. The learned Senior Counsel further pointed out that the landlords have no sufficient funds to demolish and put up new construction.
The learned Senior Counsel pointed out that previously the landlords filed R.C.O.P.No.59 of 1985 for eviction on the same ground of demolition
and reconstruction and also filed abetment suit in O.S.No.73 of 1985 and later allowed the R.C.O.P.No.59 of 1985 dismissed for default.
Therefore, according to the learned Senior Counsel, the requirement of the petition premises for demolition and reconstruction is without bona fide
and has been filed as a ruse to evict the tenants. In support of his contention that the Rent Control Original Petition as filed is not maintainable, the
learned Senior Counsel placed the following decisions:-
(1) Bombay Burma Trading Corporation Ltd., Poll chi, Combater District - vs. - A.T. Narayanaswami Pillai reported in 94 LW 334,
(2) Noor Ahmed Vs. S. Ramasamy, and
(3) Balasubramaniam alias Palaniappan represented by Power Agent, M.Arumugham reported in 1998 M.L.J. 496, in which this Court has held:-
In view of the admission that the condition of the entire building is the same, the alleged requirement for demolition of the portion in the occupation
of the respondent alone casts a doubt on the bona fide of the petitioner. It is settled law that the landlord need not place the entire liquid cash
before court. But when the landlord himself says that he has to raise fund from others, his capacity to raise the fund is to be proved. The evidence
in this regard is lacking. The finding can only be against the landlord in this case.
The husband of the first respondent and the father of the second respondent K.C.Sundaram became a tenant in respect of the petition ''A''
schedule property which is a cinema theatre by name Sundaram Talkies in Mayiladuthurai and such lease was reduced into writing lastly as per
Ex.R-10 dated 6.11.1988. As per the lease agreement Ex.R-10, the lease is for three years from 1.10.1987 to 30.9.1990 and in respect of the
petition schedule mentioned property, with all buildings, structures, fixtures, appurtenants, open space, land, ground, trees, etc. As per clause ''C''
of the lease agreement Ex.R-10, the lessee have to instal machinery for the purpose of cinema business. On the same day another lease agreement
was also entered between them as per Ex.R-11 in respect of the electrical fittings in the theatre.
As per Section 30(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, any lease of a building under which the object of the tenant is
to run the business or industry with the fixtures, machinery, furniture of other articles belonging to the landlord and situated in such building and
Illustration (2) of section 30(iii) clarifies where the lease is of land and building together with fixtures, fittings, cinematograph talkie equipments,
machinery and other articles, the Act does not apply to such building.
Since as per Ex.R-10, the lease being only for the theatre by name Sundaram Talkies and that the lessee have to instal machinery for the
purpose of cinema business, it is clear that only Tamil Nadu Buildings (Lease and Rent Control) Act is applicable. The plea was not taken in the
counter and no stand was taken before the learned Rent Controller as well before the learned Rent Control Appellate Authority that the Rent
Control Original Petition as filed is hit u/s 30(iii) of the Act. Therefore, it is not open for the tenants/respondents to agitate in this Civil Revision
Petition that the Rent Control Original Petition as filed is without jurisdiction and hit u/s 30(iii) of the Act, but inasmuch as the lease is only for the
Cinema theatre by name Sundaram Talkies under Ex.R-10 and the lessee have to instal machinery for the purpose of cinema business, the Rent
Control Original Petition as filed is maintainable and not hit u/s 30(iii) of the Act.
The Rent Control Original Petition was filed on 30.11.1990. Before that, in the lawyer notice under Ex.P-1 dated 31.10.1990, it is stated that
the building as theatre is more than 60 years old brick built zinc roofed building. In the reply notice Ex.P-2 dated 3.11.1990, it is stated that the
entire furniture in the theatre have to be put up only by the tenants/respondents at their own cost, besides the installation of 28 fans. The Engineer
R.W.2 examined on behalf of the tenants/respondents also admitted that the age of the building of the cinema theatre is more than 60 years.
Therefore, the building of the theatre is 60 years old.
The advocate-commissioner appointed in I.A.No.108 of 1991 inspected the petition theatre building on 18.10.1992 and also on 3.12.1997
along with Engineer and in the report Ex.C-1 of the advocate-commissioner, it is stated that the building is old and some of the iron sheets of the
roofing have been removed and replaced with new sheets. The Engineer P.W.2 has filed his report Ex.C-2 in which it is stated that the theatre is in
door No.108, No.2 Road in Ward No.3 and T.S.No.816 of Mayiladurai Municipality and it is in close proximity to the main bus-stand and it is
about one kilometre from railway junction. It is on the main highway connecting Mayiladurai to Kumbakonam. The commercial worth will be high
in the commercially busy zone. Periodic maintenance to satisfy the norms for grant of and renewal of licence by attending to patchwork, cracks,
plastering and rendering with good quality paints, was done. It is further stated that the core structure is a post and roof structure and the roofing
consists of galvanished iron corrugated sheets. The walls are of brickwork in lime and/or mud Mortar. The door and openings of 6 feet width and
with steel plated shutters have been provided to satisfy the cinematographic rules. On the north end of the auditorium an enclosure about 12 feet x
25 feet have been added by putting up brickwork and R.C. Joist and slab floor to accommodate the projectors and other cinematographic
equipment. It is also stated that there are few places where dampness still present on the walls on the inner side of stage. Therefore, it is clear that
the condition of the petition theatre building is not sound.
In the lawyer notice Ex.P-1 dated 31.10.1990 as well in the Rent Control Original Petition, it is clearly set out that the landlords want to put up
a shopping complex over the site and to augment the income and that they have sufficient funds to put up such shopping complex. The 6th
petitioner, P.W.1 in his evidence has stated that he is doing wholesale cigaret business, besides Cooking Gas Agency. The 2nd petitioner is an
Engineer. The 4th petitioner is doing business in Chennai. The 7th petitioner is a Doctor. Further, according to P.W.1, the petitioners are sharers to
several theatres situated in and around Mayiladurai. They have sufficient funds to put up shopping complex. The theatre campus and also the Hari
Scan Centre building which is on the east of the theatre campus was 38000 square feet in which Hari Scan Centre building is 9000 square feet.
Hari Scan Centre building is in the enjoyment of the 7th petitioner. The petitioners have let out the site of 10000 square feet in the same road to
workshop in 1988-89 and it is about 3/4 furlong away from the theatre campus and they proposed to construct shopping complex in 15000
square feet. Further, it is in evidence that the expenditure for the family of each of the petitioners would be about Rs.4,000/- per month and there
are three shops on the west of Hari Scan Centre and in front of the theatre. The above three shops have been let out to three tenants and no steps
have been taken to vacate the said tenants and only if the possession of the said shops is also obtained, such shopping complex can be put up. The
landlords have also marked Exs.P-27 to P-34, the xerox copies of the Income Tax returns of the petitioners.
It is the evidence of R.W.1, son-in-law of the first respondent that on the opposite side of the petition theatre, several shops have been
constructed by the Municipality and have been let out. There is a bus stop in front of the petition theatre. There is a police station nearby the
petition theatre. There is a petrol bunk about 60 yards to 100 yards away from the petition theatre and there are shopping complex on the east and
west of the petition theatre about 100 feet away.
K.S. Vengu Chettiar, father of the petitioners 4 to 7 was owning cinema theatres and his family was in cine field. It is admitted by R.W.1 that
the family of the Vengu Chettiar is owning the house and garden in the name of K.S.V. Colony which have been let out to 6 or 7 tenants and that
the petitioners have been running Spic Cooking Gas Agency and also Cigaret Agency and are owning shares in the theatres in Mayiladuthurai,
Kuttalam, Aduthurai and Chidambaram. Therefore, it is clear from the evidence of P.W.1, R.W.1 and Exs.P-27 to P-34 that the petitioners have
sufficient funds to put up shopping complex after demolishing the petition theatre buildings so that they can get more income. Further, in view of the
fact that the 6th petitioner is doing wholesale cigaret business, besides Cooking Gas Agency, the 2nd petitioner is an Engineer, the 4th petitioner is
doing business in Chennai, the 7th petitioner is a Doctor and the petitioners are sharers to several theatres situated in and around Mayiladurai, it is
clear that the petitioners are in a position to raise funds to put up such shopping complex to augment their income.
The theatre is situated on the south of Kumbakonam-Mayiladurai Main Road. It appears there is also a road on the west. The entire theatre
campus is inclusive of Hari Scan Centre which is run by the 7th petitioner. Though it is stated by P.W.1 in his evidence that on the west of the Hari
Scan Centre and in front of the theatre there are three shops and have been let out to three tenants and no steps have been taken to evict the said
tenants and only if the possession of the said shops also obtained then only they can put up shopping complex, inasmuch as the entire theatre
campus is situated on the south of east to west Kumbakonam-Mayiladurai Main Road and there is also a road on the west of the theatre, without
the said three shops, such shopping complex can be put up by having opening on the western side road or by leaving the three shops which have
been let out to other three tenants and by including the building in which Hari Scan Centre is run by the 7th petitioner himself.
Necessary undertaking to demolish the material portion of the building by not later than one month and to complete before the expiry of three
months from the date of recovery of possession of the entire building or before the expiry of further period that will be extended, has been given by
the petitioners.
As per Section 16 of the Act, it is open to the tenant to seek possession of the buildings which have been delivered by him to the landlord if the
building which is sought for demolition and reconstruction, is not demolished and any material portion of the building has not been substantially
commenced by the landlord within the period of one month in accordance with his undertaking under clause (b) of sub-section (2) of section 14 of
the Act.
The landlords/revision petitioners have satisfied the condition required for seeking the building for the purpose of demolition and reconstruction,
in that the theatre building is more than 60 years old and not in sound condition. The landlords have sufficient funds to put up shopping complex
and also in a position to raise the amount required for such purpose, in that 6th petitioner is doing wholesale cigaret business, besides Cooking Gas
Agency, the 2nd petitioner is an Engineer, the 4th petitioner is doing business in Chennai, the 7th petitioner is a Doctor and the petitioners are
sharers to several theatres situated in and around Mayiladurai.
It is settled now that the landlords can produce the sanctioned or approved plan before the Executing Court after obtaining the same from the
authorities. The landlords have proved that the requirement of the petition theatre buildings is bona fide. Merely because, the petitioners let out the
nearby site of 10000 square feet to the workshop, it cannot be said that the landlords have no intention to put up shopping complex by demolishing
the petition theatre building. Despite the fact that the landlords/revision petitioners have clearly proved that the requirement of the petition theatre
buildings is bona fide, the finding recorded by the learned Rent Control Appellate Authority in confirming the order of the learned Rent Controller
that the requirement of the petition theatre building for the purpose of demolition and reconstruction is mala fide cannot said to be proper and
therefore such finding is to be interfered with and set aside.
In the result, this Civil Revision Petition is allowed with cost setting aside the judgment and decree dated 27.10.1998 made in R.C.A.No.5 of
1998 by the learned Rent Control Appellate Authority and eviction is ordered as prayed for in the Rent Control Original Petition. The
landlords/revision petitioners are directed to produce sanctioned or approved plan in the Executing Court.